A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §37-16-1, §37-16-2,
§37-16-3, §37-16-4, §37-16-5, §37-16-6, §37-16-7, §37-16-8,
§37-16-9 and §37-16-10, all relating to the creation of a
transfer on death deed; defining terms; setting requirements
for an affidavit of transfer on death deed; detailing transfer
on death; requiring verification of the affidavit; requiring
that the affidavit be recorded; proclaiming that no
consideration is necessary for a transfer on death; permitting
revocation; providing that transfer only occurs to the named
transferee; creating provisions for trustees of trusts in
transfers on death; stating certain requirements for
finalizing the transfer on death; setting certain standards,
characteristics and ramifications for transfer on death
designation affidavits; and creating a misdemeanor offense for
knowingly and intentionally making a false statement in an
affidavit required by this article.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §37-16-1, §37-16-2,
§37-16-3, §37-16-4, §37-16-5, §37-16-6, §37-16-7, §37-16-8, §37-16-9 and §37-16-10, all to read as follows:

ARTICLE 16. TRANSFER ON DEATH DEED.

§37-16-1. Definitions.

As used in this article, unless the context clearly indicates
otherwise:

(1) “Survivorship tenancy” means an ownership of real property
or any interest in real property by two or more persons that is
created by executing a deed pursuant to West Virginia law;

(2) “Survivorship tenant” means one of the owners of real
property or any interest in real property in a survivorship
tenancy;

(3) “Transfer on death designation affidavit” or “affidavit”
means an affidavit executed under this article; and

(4) “Transfer on death beneficiary” or “transfer on death
beneficiaries” means the beneficiary or beneficiaries designated in
a transfer on death designation affidavit.

§37-16-2. Transfer on death beneficiary affidavit.

(a) Any individual who, under West Virginia Code or the common
law of this state, owns real property or any interest in real
property as a sole owner, as a tenant in common, or as a
survivorship tenant, may designate the entire interest, or any
specified part that is less than the entire interest, in that real
property as transferable on death to a designated beneficiary or
beneficiaries by executing, together with the individual’s spouse,
if any, a transfer on death designation affidavit consistent with
the requirements of this article. The designation of a transfer on
death beneficiary has no effect on the present ownership of real
property, and a person designated as a transfer on death
beneficiary has no interest in the real property until the death of
the owner of the interest.

(b) Any transfer on death of real property or of an interest
in real property that results from a transfer on death designation
affidavit designating a transfer on death beneficiary is not
testamentary. That transfer on death shall supersede any attempted
testate or intestate transfer of that real property or interest in
real property. If the affidavit is executed, pursuant to this
article, by an individual together with the individual’s spouse, if
any, the rights of the spouse are subordinate to the vesting of
title to the interest in the real property in the transfer on death
beneficiary or beneficiaries designated under this article. The
execution and recording of a transfer on death designation
affidavit shall be effective to bar the vesting of any rights of
dower in a subsequent spouse of the owner of the real property who
executed that affidavit unless the affidavit is revoked or changed.

(c) A fee simple title or any fractional interest in a fee
simple title may be subjected to a transfer on death designation
affidavit. The affidavit shall include, at a minimum:

(1) A description of the real property the title to which is
affected by the affidavit and a reference to an instrument of
record containing that description;

(2) A statement designating one or more persons, identified by
name, as transfer on death beneficiary or beneficiaries;

(3) A statement by the individual executing the affidavit that
the individual is the person appearing on the record of the real
property as the owner of the real property or interest in the real
property at the time of the recording of the affidavit and the
marital status of that owner. If the owner is married, the
affidavit shall include a statement by the owner’s spouse stating
that the spouse’s rights are subordinate to the vesting of title to
the real property or interest in the real property in the transfer
on death beneficiary or beneficiaries designated in the affidavit;
and

(4) If less than the entire interest in the real property is
to be transferred on death under the affidavit, a statement of the
specific interest or part of the interest in the real property that
is to be so transferred.

(d) A transfer on death designation affidavit may contain a
designation of one or more persons as contingent transfer on death
beneficiaries, who shall take the interest of the deceased owner
that would otherwise have passed to the transfer on death
beneficiary if that named transfer on death beneficiary does not
survive the deceased owner or is not in existence on the date of
death of the deceased owner. Persons designated as contingent
transfer on death beneficiaries shall be identified in the
affidavit by name.

(e) Any transfer on death beneficiary or contingent transfer
on death beneficiary may be a natural or legal person, including,
but not limited to, a bank as trustee of a trust, except that if
two or more transfer on death beneficiaries are designated as
survivorship tenants, all of those beneficiaries shall be natural
persons and if two or more contingent transfer on death
beneficiaries are designated as survivorship tenants, all of those
contingent beneficiaries shall be natural persons. A natural person
who is designated a transfer on death beneficiary or contingent
transfer on death beneficiary solely in that natural person’s
capacity as a trustee of a trust is not considered a natural person
for purposes of designating the transfer on death beneficiaries or
contingent transfer on death beneficiaries as survivorship tenants.

(f) The affidavit shall meet all the requirements of this
article and be recorded in the office of the clerk of the county
commission in the county in which the real property is located,
and, when so recorded, the affidavit or a certified copy of the
affidavit shall be evidence of the transfer on death beneficiary or
beneficiaries so designated in the affidavit insofar as the
affidavit affects title to the real property.

§37-16-3. Verification required.

A transfer on death designation affidavit shall be verified
before a notary public or any other person authorized to administer
oaths.

§37-16-4. Recordation.

The county commission of the county in which a transfer on
death designation affidavit is offered for recording shall receive
the affidavit and cause it to be recorded in the same manner as
deeds are recorded. The county commission shall collect a fee for
recording the affidavit in the same amount as the fee for recording
deeds. The county commission shall index the affidavit in the name
of the owner of record of the real property or interest in the real
property who executed the affidavit.

In order to be effective, the affidavit shall be recorded with
the county commission as described in this article prior to the
death of the individual who executed the affidavit.

§37-16-5. Consideration not required; revocation without consent.

A transfer on death designation affidavit need not be
supported by consideration and need not be delivered to the
transfer on death beneficiary or beneficiaries designated in the
affidavit to be effective.

The designation in a transfer on death designation affidavit
of any transfer on death beneficiary may be revoked or changed at
any time, without the consent of that transfer on death
beneficiary, by the owner of the interest or by the surviving
survivorship tenants of the interest, by executing and recording,
prior to the death of the owner of the interest or of the surviving
survivorship tenants of the interest, as the case may be, a new
transfer on death designation affidavit stating the revocation or
change in the designation. The new transfer on death designation
affidavit shall automatically supersede and revoke all prior
recorded transfer on death designation affidavits with respect to
the real property or the interest in real property identified in
the new affidavit, provided that the prior recorded affidavit was
executed before the later recorded affidavit.

§37-16-6. Transfer at death.

(a) Transfer under a transfer on death designation affidavit
must follow this section. First, the type of ownership interest
must be evaluated and the affidavit shall be treated as follows:

(1) If an individual who owns real property or an interest in
real property as a sole owner or as a tenant in common executes a
transfer on death designation affidavit, upon the death of that
individual, title to the real property or interest in the real
property specified in the affidavit vests in the transfer on death
beneficiary or beneficiaries designated in the affidavit, subject
to the other requirements in this article.

(2) If an individual who owns real property or an interest in
real property as a survivorship tenant executes a transfer on death
designation affidavit, upon the death of that individual or of one
but not all of the surviving survivorship tenants, title to the
real property or interest in the real property specified in the
affidavit vests in the surviving survivorship tenant or tenants.
Upon the death of the last surviving survivorship tenant, title to
the real property or interest in the real property vests in the
transfer on death beneficiary or beneficiaries designated in the
affidavit, subject to the other requirements in this article.

(b) Transfer then occurs as follows and subject to the
following conditions:

(1) An interest of a deceased owner shall be transferred to
the transfer on death beneficiaries who are identified in the
affidavit by name and who survive the deceased owner or that are in
existence on the date of the deceased owner’s death. If there is a
designation of more than one transfer on death beneficiary, the
beneficiaries shall take title to the interest in equal shares as
tenants in common, unless the deceased owner has specifically
designated other than equal shares or has designated that the
beneficiaries take title as survivorship tenants.

(2) If a transfer on death beneficiary does not survive the
deceased owner or is not in existence on the date of the deceased
owner’s death, and the deceased owner has designated one or more
persons as contingent transfer on death beneficiaries, the
designated contingent transfer on death beneficiaries shall take
the same interest that would have passed to the transfer on death
beneficiary had that transfer on death beneficiary survived the
deceased owner or been in existence on the date of the deceased
owner’s death.

(3) If none of the designated transfer on death beneficiaries
survives the deceased owner or is in existence on the date of the
deceased owner’s death and no contingent transfer on death
beneficiaries have been designated or have survived the deceased
owner, or are in existence on the date of death of the deceased
owner, the interest of the deceased owner shall be distributed as
part of the probate estate of the deceased owner of the interest.

(4) If there are two or more transfer on death beneficiaries
and the deceased owner has designated that title to the interest in
the real property be taken by those beneficiaries as survivorship
tenants, no designated contingent transfer on death beneficiaries
shall take title to the interest unless none of the transfer on
death beneficiaries survives the deceased owner on the date of
death of the deceased owner.

(5) If the owners hold title to the interest in a survivorship
tenancy, the death of all except the last survivorship tenant
automatically terminates and nullifies any transfer on death
beneficiary designations made solely by the deceased survivorship
tenant or tenants without joinder by the last surviving
survivorship tenant. The termination or nullification of any
transfer on death beneficiary designations is effective as of the
date of death of a deceased survivorship tenant. No affirmative act
of revocation is required of the last surviving survivorship tenant
for the termination or nullification of the transfer on death
beneficiary designations to occur. If the last surviving
survivorship tenant dies with no transfer on death beneficiary
designation, the entire interest of that last surviving
survivorship tenant shall be distributed as part of the tenant’s
probate estate.

(6) A transfer on death beneficiary takes only the interest
that the deceased owner or owners of the interest held on the date
of death, subject to all encumbrances, reservations, and
exceptions. No rights of any lien holder, including, but not
limited to, any deed of trust, judgment creditor or mechanic’s lien
holder, shall be affected by the designation of a transfer on death
beneficiary. If any lien holder takes action to enforce the lien,
by foreclosure or otherwise through a court proceeding, it is not
necessary to join any transfer on death beneficiary as a party
defendant in the action unless the transfer on death beneficiary
has another interest in the real property.

(c) Upon the death of an individual who executed a transfer on
death affidavit, the transfer of a deceased owner’s real property
or interest in real property as designated in a transfer on death
affidavit shall be recorded by presenting to the clerk of the
county commission of the county in which the real property is
located and filing with that county an affidavit of confirmation
executed by any transfer on death beneficiary to whom the transfer
is made. The affidavit of confirmation shall be verified before a
notary public or other person authorized to administer oaths and
shall be accompanied by a certified copy of the death certificate
for the deceased owner. The affidavit of confirmation shall contain
all of the following information:

(1) The name and address of each transfer on death beneficiary
who survived the deceased owner or that is in existence on the date
of death of the deceased owner. If a named beneficiary was
designated as a transfer on death beneficiary solely in that
person’s capacity as a trustee of a trust and that trustee
subsequently has been replaced by a successor trustee, the
affidavit of confirmation shall include the name and address of the
successor trustee and shall be accompanied by a copy of a recorded
successor trustee affidavit;

(2) The date of death of the deceased owner;

(3) A description of the subject real property or interest in
real property; and

(4) The name of each transfer on death beneficiary who has not
survived the deceased owner or that is not in existence on the date
of death of the deceased owner.

(d) The affidavit of confirmation shall be accompanied by a
certified copy of the death certificate for each transfer on death
beneficiary who has not survived the deceased owner.

(e) The clerk of the county commission shall make an index
reference in the record of deeds to any affidavit of confirmation
filed with the county commission pursuant to this section.

§37-16-7. Named beneficiary must survive to be effective.

Upon the death of any individual who owns real property or an
interest in real property that is subject to a transfer on death
beneficiary designation made under a transfer on death designation
affidavit as provided in this article, that real property or
interest in real property of the deceased owner shall be
transferred only to the transfer on death beneficiary or
beneficiaries who are identified in the affidavit by name and who
survive the deceased owner or that are in existence on the date of
death of the deceased owner.

§37-16-8. Special beneficiary determination for named trustee.

For purposes of this article, if a natural or legal person
designated by name in the affidavit as a transfer on death
beneficiary or as a contingent transfer on death beneficiary solely
in that person’s capacity as a trustee of a trust has died, has
resigned or otherwise has been replaced by a successor trustee of
the trust on the date of death of the deceased owner, the successor
trustee of the trust shall be considered the transfer on death
beneficiary or contingent transfer on death beneficiary in
existence on the date of death of the deceased owner in full
compliance with this article, notwithstanding that the successor
trustee is not named as a transfer on death beneficiary or
contingent transfer on death beneficiary in the affidavit.

§37-16-9. Liberally construed.

Any transfer on death designation affidavit containing
language that shows a clear intent to designate a transfer on death
beneficiary shall be liberally construed to do so. Any
survivorship clause in a deed recorded before or after the
effective date of this statute in an office of the clerk of a
county commission that attempts to create a right of survivorship
tenancy, but otherwise fails, and shows a clear intent to designate
a beneficiary to receive the property upon death of one or more co-tenants by survivorship shall be liberally construed to be an
effective affidavit under this statute.

The execution and recording of a transfer on death designation
affidavit shall be effective to terminate the designation of a
transfer on death beneficiary in a transfer on death deed involving
the same real property or interest in real property and recorded
prior to the effective date of this section.

§37-16-10. Criminal penalties for falsifying an affidavit.

Any person who knowingly and intentionally makes any false
statement in any affidavit required by this article is guilty of a
misdemeanor, and, upon conviction thereof, shall be fined not more
than $1,000 or confined in jail for not more than one year, or both
fined and confined.